Choice of
Internet Defamation Law
Celina Kirchner
Defamation
• Defamation: The act of harming the reputation
of another by making a false statement to a third
person
– Libel: written defamation
– Slander: spoken defamation
• Elements
– Reputation to protect
– False statement
US Defamation Law
• Burden on the plaintiff to prove that the statements
are false
• Single Publication Rule
– One work published many times will only cause one
action for defamation
• Federal statutory shield for ISPs (aka deep pockets)
– Communications Decency Act of 1995 (CDA) §230
• Internet Service Providers (ISPs) are not liable for content
posted by third-party users
• Damages may often be limited to “actual” damages
• Each party covers its own fees
Why libel tourism?
• Libel tourism occurs when litigants from one
country sue in another country that has more
favorable defamation laws
• Defamation cases in the US are costly to litigate and
limited in both potential defendants and damages
• Thus, defamation plaintiffs turned to other
countries for better outcomes
• Since this internet is available anywhere, it is
theroetically possible to get jurisdiction in every
country
English Defamation Law
• Burden on the Δ to prove that the allegedly
defamatory statements are true
• Multiple Publication Rule
– Every time a statement is repeated/copied, a new cause of
action is possible
– Extends the statute of limitations indefinitely – every hit
is a new day
• ISPs are more likely to be found liable for third party
content
• English law allows punitive and statutory damages
beyond actual damages as well as attorney’s fees
• Fee Shifting – prevailing party pays both sides’ fees.
– With defamation cases often finding for the π, this can be
a cherry on top
Choice of Law in US Defamation Cases
• Restatement (Second) of Conflicts of Laws § 149
– State of publication
– UNLESS another state has more interest (following §6)
• Restatement (Second) of Conflicts of Laws § 150
1) Liability for an edition of a book or newspaper, etc. is
determined by the state with the most significant relationship to
the occurrence
2) For a natural person, the state with the most significant
relationship is likely the state where the subject of the
defamation was domiciled at the time of publication in that state
3) For a legal person (corporation), the state with the most
significant relationship is likely the state of the legal person’s
principal place of business
Jurisdiction in UK Defamation Cases
•
English courts have jurisdiction over all defamatory
statements downloaded in England
–
“[T]he common law currently regards the publication of an
Internet posting as taking place when it is down-loaded” (King
v. Lewis, 15)
Even if only a few copies made it to the UK, jurisdiction is
established
–
•
For non-UK countries in the EU, the Brussels
Convention applies
–
Brussels Convention §2, art. 5(3)
•
“A person domiciled in a Member State may, in another Member State,
be sued:…in matters relating to tort…in the courts for the place
where the harmful event occurred or may occur”
Choice of Law in UK Defamation Cases
•
Double Actionability Rule - Private International Law
(Miscellaneous Provisions) Act of 1995, Ch. 42
–
•
Requires that a case be triable under both English law and the
law of “the country in which the events constituting the
tort…in question occur” (§11(1))
The Double Actionability Rule was abolished for all tort
cases in 1995 (§10)
–
•
All tort cases…except defamation! (§13)
The otherwise useless Double Actionability Rule still
applies
–
Internet defamation cases must be triable under both English
and the foreign law
•
•
This hasn’t really slowed down libel tourism – the US has defamation
May limit damages to those incurred in England
Choice of Law in UK Defamation Cases
• Significant relationship to the issue
– “A particular issue between the parties which arises
in a defamation claim may be governed by the law
of the country which, with respect to that issue, has
the most significant relationship with the
occurrence and the parties” (Dicey and Morris on
Conflict of Laws)
Choice of Law in UK Defamation Cases
• Overall, it seems that UK law dominates as
soon as jurisdiction is established.
– American law is seen as a guide but not considered
for actual use
•
“Care has to be taken before American cases are applied
in English defamation cases. The impact of the First
Amendment of the United States Constitution has
resulted in a substantial divergence of approach between
American and English defamation law.” (Godfrey v.
Demon Internet)
Choice of Law in UK Defamation Cases
UK Internet Defamation Cases
Shevill v. Presse Alliance (1995)
• Π is an English citizen living in England
• Δ is a French newspaper
• Δ appealed for lack of jurisdiction, because only 250 of the
newspapers were sold in England out of a circulation of
200,000
• Court applied UK law to harm caused by the 250 UK copies
• Held: You can either try the case in the place where the
publisher is located and get the damages for everywhere that
they have occurred or you can try the case in the place where
the harm occurred but only collect damages for harm within
the jurisdiction
– Π chose to remain in a British court
UK Internet Defamation Cases
Lennon v. Scottish Daily Record (2004)
• Π is a soccer player for a Scottish team and lives in Scotland
• Δ is a Scottish newspaper
• 461,294 copies in Scotland, 22,069 in England
• Issue: Is England the proper jurisdiction?
• Held: English jurisdiction and law
– There is enough of a relationship to England that it need not be
transferred
– Note that damages will be limited to those caused in the UK
(Shevill)
• Reasons why England is the proper forum and law
– Distribution of copies of the newspaper in England proves that
this is the location of the "harmful event"
– A case should be tried in the jurisdiction where the harm was felt
– Cost of a trial in England will be the same as the cost in Scotland
The US Response
• New York implemented the Libel Tourism
Protection Act in 2008
• Congress enacted the SPEECH Act in 2010
– Securing the Protection of our Enduring and
Established Constitutional Heritage (SPEECH Act)
– Any domestic court (federal or state) will not
enforce foreign defamation decisions unless they
meet Constitutional standards for free speech and
due process
• Many states have since followed suit
The SPEECH Act
• Foreign judgments are not enforceable unless
a. They respect freedom of speech as much as the
Constitution
b. Personal jurisdiction was exercised in a manner
that follows Constitutional due process
requirements
•
Appearance at a foreign trial does not block the
SPEECH Act from being enforced
c. They are not against ISPs (as defined in the CDA)
or follow CDA guidelines
New Trends
Metropolitan International Schools v.
Designtechnica and others (2009)
– Π is a European distance learning course company
– Δs are an Oregon corporation and Google
– Δs were not held responsible for defamatory
comments posted on a blog they hosted
– Similarity to US cases
• “Mental element” required for ISP liability - ISPs must
know/intend to publish defamatory statements
New Trends
Tamiz v. Google (2013)
• Π is (presumably) an English blogger
• Δs are Google and a subsidiary blog hosting website
• Π claims 8 defamatory statements were posted on his blog
between April and August.
– Π complained to Δ
– All of the comments were deleted in August
• Google is not liable for content posted by a third party unless
its employees interacted with that content in some way
– Once it received notice, it took the comments down in an amount
of time that the court considered “reasonable” and was therefore
not liable.
– Much closer to US law
– Probably will be enforced by US courts
How could we do this better?
• Establish more finite jurisdictional rules
– Limit the places where a defamation occurs
• Not in every place it is read/published
• This worked for newspapers which were at least limited to
sale of a physical paper
• Internet publishers cannot control where their material is
downloaded
• Elevate the substantial relationship standard
– Require a certain percentage of circulation be
sold/downloaded before establishing jurisdiction
How could we do this better?
• Create choice of law rules specific to the internet
– Law of Location of Hardware
• This may be too limiting and grant too much power to the
courts in tech industry cities/states/countries
• Since most ISPs host in the US, this would unfairly prejudice
the US
– Law of Plaintiff ’s Domicile
• "[E]ither or both of the places where the individual was when
the damage occurred and the place where the event giving rise
to it occurred" (Shevill referencing Handelskwekerij G.J. Bier B.V.
v. Mines de Potasse d'Alsace S.A. [1978] 1 Q.B. 708, 730)
How could we do this better?
• Create choice of law rules specific to the
internet (continued)
– Law of Defendant’s Domicile
• Protective of free speech
• Writers/creators/editors know which laws will apply to
them and what to expect
– Forum Law (ignore choice of law issue)
• Limits the choice of law argument altogether
• Saves resources
• Forum shopping spree
How could we do this better?
• Limit International Cases
– Limit Comity
• Very bad for international cooperation
• Could cause retaliation by foreign governments
– Forum Non Conveniens
• The availability of a forum non conveniens defense would
grant Δs some power to have their cases transferred home
How could we do this better?
• Limit International Cases
– Most Substantial Relationship Test
• Just because a country is related to an incident does not
mean it is the most related/interested
• Unfair to plaintiffs who are injured in many countries
– This could be solved by trying all injuries in the court of the
country with the most substantial relationship to the issue
– Law of Defendant’s Domicile
• Defendants would never have to worry about being
dragged to a foreign court
Further Research
• Dicey, Morris, and Collins on Conflict of Laws
– British version of Restatement of Conflicts of Laws
• Gatley on Libel and Slander
– British version of Restatement of Torts, but specific
to libel and slander.
• Final awards in international defamation cases